Post by Banjo on Aug 30, 2016 7:56:27 GMT 7
Hewett and Secretary, Department of Social Services (Social services second review) [2016] AATA 629 (23 August 2016)
REASONS FOR DECISION
Miss E A Shanahan, Member
23 August 2016
Mr Hewett has been receiving the disability support pension (DSP) since 2009 for a medical condition stated to be a personality disorder. In 2010, he was diagnosed with glaucoma. He has been using Latanoprost in the form of eye drops since that time.
On 14 February 2015, without notifying Centrelink, Mr Hewett travelled to India. He stayed in India for some 23 days returning on 9 March 2015. One month later, on 9 April 2015, he departed again for India. He returned to Australia on 2 August 2015. His disability support pension was suspended on 14 April 2015, when he exceeded the 28 days maximum portability period provided under s 1217 of the Social Security Act 1991 (the Act).
On Mr Hewett’s return to Australia, he requested a review of the decision. A review was undertaken by an authorised review officer (ARO) on 15 September 2015. The determination was affirmed.
Mr Hewett requested further review by the Social Security and Child Support Division of the Administrative Appeals Tribunal (1st Tier Review) on 8 December 2015. On 18 February 2016 the 1st Tier Review affirmed the decision. Mr Hewett then applied for 2nd Tier Review by the General Division of the Administrative Appeals Tribunal, lodging his application on 17 March 2016.
Mr Hewett was self-represented at the hearing. Mr James Henderson, a solicitor for the Department of Human Services, appeared for the Secretary, Department of Social Services (the Secretary). The Tribunal had been provided with the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents).
TRIBUNAL’S DELIBERATIONS
Legislative changes in relation to the portability of DSP came into effect on 1 January 2015. Section 1217(2) of the Act provided that the maximum portability period for DSP recipients was a total of 28 days in a 12 month period. Mr Hewett’s absence overseas in India during April 2015 exceeded this 28 days, 5 days into his second overseas trip. The second overseas trip lasted for a further 110 days, to a total of 115 days.
Mr Hewett did not advise Centrelink of his plans to travel overseas, as is required by the guidelines. He has given evidence that he accessed the Centrelink internet page prior to his departure and ascertained that, in terms of his interpretation of the content of the website, his portability would be for a period of 12 months given he was unemployable.
Section 1215(b) of the Act clearly states that where a payment is subject to a portability period, a person’s payment is not payable if they remain absent from Australia beyond that portability period. Section 1217 of the Act clearly states that in Mr Hewett’s case, that period is 28 days.
The Act does provide for exceptions to the 28 day limit. The portability period may be extended for a period of four weeks, where the recipient of the DSP is seeking eligible medical treatment. Section 1212 of the Act clearly provides that this must be treatment that is not available in Australia. The types of treatment approved are extremely wide and include a limited range of forms of alternative medicine.
Mr Hewett claimed that he went to India for treatment of glaucoma. The treatment is said to be an Indian remedy, which has been in use for 5000 years. No evidence has been provided as to Mr Hewett having been diagnosed with glaucoma. There is no evidence that an Australian medical practitioner recommended or supervised such treatment or that such treatment whatever it might be, is not available in Australia. In addition Mr Hewett has not provided any confirmatory evidence that he received any treatment whilst in India.
Section 1218C(1) of the Act provides for a general extension where the DSP recipient is unable to return to Australia because of a listed variety of events which include such as serious illness, hospitalisation or death of a family member or, a natural disaster and political or social unrest in the country that is being visited. None of these apply to the facts provided by Mr Hewett.
Unlimited portability is attracted in s 1218AAA(1) where the recipient of the DSP has a severe impairment as defined, being 20 points under a single Impairment Table, and the Secretary is satisfied that this severe impairment will last for at least five years and would prevent the person from performing any work independently of a program of support for that time. Persons seeking such unlimited portability in accordance with the guide are required to undergo an assessment of their impairment and future work capacity in order to satisfy this section. This assessment is conducted in accordance with the Impairment Tables in force at the time.
Mr Hewett does not satisfy any of the discretionary provisions allowing an extension of time of portability for overseas travel. He has not been reassessed as having a severe disability in accordance with the current Impairment Tables. He has provided no medical or other evidence with respect to his glaucoma diagnosis, or whether the treatment he sought was eligible medical treatment under the supervision of an Australian practitioner
As Mr Hewett does not qualify for unlimited portability, he is subject to a portability period. The effect of this is that when Mr Hewett’s absence from Australia exceeded his portability period of 28 days, his payment became non-payable pursuant to s 1215(b) of the Act. The Secretary was then required to suspend or cancel the payment, pursuant to s 80(1) of the Administration Act.
Following a suspension of 13 weeks, the Secretary further decided to cancel Mr Hewett’s payment. There is nothing preventing the Secretary from taking such a course of action (s 33(1) Acts Interpretation Act 1901). Further, the Tribunal determines that given the extent of Mr Hewett’s absence from Australia and that he had already been subject to a suspension period of an appropriate length, the decision to cancel Mr Hewett’s DSP on 14 July 2015 was the preferable decision.
For these reasons, the Tribunal affirms the decision under review.
www.austlii.edu.au/au/cases/cth/AATA/2016/629.html
